Damages for Breaches of the New Zealand Bill of Rights: Why Aren't They Sufficient Remedy?

Abstract

This article attempts to explain the relative lack of cases brought for "public law compensation" or damages under the New Zealand Bill of Rights Act 1990 both by reference to the reluctance of the New Zealand courts to expand the remedy and to the nature of the New Zealand Bill of Rights Act 1990 and its place within the New Zealand legal universe. The author links that lack of success with the marked reluctance by judges in the United Kingdom to use damages as a remedy for breaches of the Human Rights Act 1998 (UK). This article argues that the source of the failure of Baigent's Case, in which the New Zealand Court of Appeal asserted jurisdiction to award compensation for breaches of the New Zealand Bill of Rights Act 1990, lies not only in a combination of factors to do with the sorts of right recognized by that enactment, but also in the fact that Baigent's Case (along with human rights compensation in other jurisdictions) has been undertheorized. The author examines and rejects the usual justifications given for compensation in private law cases, namely compensation, deterrence, and "corrective justice". In the author's view, the Supreme Court of New Zealand's decision in Taunoa v Attorney-General in August 2007 hints at, but does not completely explain, a signalling role for monetary awards against the government. Any complete theory of human rights compensation needs to be placed within the body of wider "public" mechanisms that courts have to control public authorities and to assess the extra value that such damages awards have in relation to other remedies. The article suggests that such an inquiry would force a little more light onto the much vexed division between public and private law.

Keywords: Constitutional Law, Breach of New Zealand Bill of Rights, Remedies, Compensation